(dissenting). It seems to me that the erroneous declarations of the law made by the majority of the court in the case of Beakley v. Ford is accentuated in the opinion of the majority in the present case, and expends very far the disastrous effect of unsettling the law with respect to presumptions which ought to, and which have heretofore, attended the judgments of probate courts when collaterally attacked. The writer in his dissenting opinion in the other case referred to, showed that it has long been the settled policy of this ■court to treat, probate courts as courts of superior jurisdiction, and that on collateral attack every presumption is to be indulged concerning the regularity of their proceedings. Borden v. State, 11 Ark. 519; Marr, ex parte, 12 Ark. 87; Rogers v. Wilson, 13 Ark. 507; Sturdy v. Jacoway, 19 Ark. 499; Apel v. Kelsey, 52 Ark. 341; Alexander v. Hardin, 54 Ark. 480.
Prior to the decision of this court in Merrill v. Harris, 65 Ark. 355, it was a mooted question whether the probate court had any jurisdiction to order a sale by the guardian of an infant’s homestead derived from his deceased parent, but the question was decided in the affirmative in that case. The court now holds that the power of the probate court with respect to the sale of the infant’s homestead is limited to oases where there are no debts of the decedent, and that where there are debts the probate court is without jurisdiction to proceed. I find no such distinction made in the opinion in Merrill v. Harris. On the contrary, it seems to me that the court expressly put the decision upon the broader ground that the probate court had complete jurisdiction over the homestead as a part of the infant’s estate, and that the judgment of the probate court ordering the sale could not be attacked collaterally. The recital of facts in the opinion was only made to emphasize the necessity of holding that the probate court possessed that power, and the fact that there were no debts of the estate was not stated as a limitation upon the power and jurisdiction of the probate court. After reciting by way of illustration, the facts of a supposed case, the court said: “The Constitution does not, in terms, seek to do more than protect from the grasp of creditors. There is neither expressly nor by implication a restriction upon the powers of the probate court in respect to this class of the property of minors. The case we have supposed presents the question fairly, and in such a case we can not see how 'but one '.answer can be given. If one case could exist wherein the probate ¡court would possess the power, that is all that is necessary to solve the question. To carry the discussion further than that would simply be to discuss questions pertaining to the proper or improper exercise of the court’s discretion in the instances as they ■may.arise, ¡accordingly as the facts may determine.”
The language just quoted is, I think, an express declaration that the probate court has jurisdiction under all .circumstances to sell the homestead of the infant for his own benefit, and that questions of propriety or expediency will not be inquired into in a collateral attack on the judgment. But even if that were not the necessary effect of the decision, the presumption ought to be indulged, according to the doctrine so often announced by this court, that the probate court, which is a court of superior jurisdiction, found the facts to exist which gave it jurisdiction. Suppose the court had found and recited in its record the fact that there were no debts of the decedent. Would that adjudication be binding upon creditors of the estate of the decedent who were neither actually nor constructively parties to the proceeding in which the guardian’s sale was ordered? Certainly not. We then have the anomalous situation, possibly, of the probate ¡court making its order of sale valid by reciting a finding that there were no debts of the decedent, and on the other hand, when the infant comes of age, the creditors, who are not bound by that judgment, can show that there are debts of the decedent’s estate and can establish their claims for the purpose of enforcing the same against the lands. It is illogical in any point of view to say that the probate court has' the authority to order, a sale of an infant’s homestead when it is found that there are no debts of the decedent but the order is void if the record fails to recite such finding. That conclusion also ignores all the presumptions which ■attend the regularity of the proceedings in the probate court in a matter over which it exercises jurisdiction as a superior court.
The distinction is sometimes made between judgments of the probate court in matters in the exercise of ordinary jurisdiction and those in 'the exercise of a special jurisdiction, but that distinction is often more imaginary than real. Certainly it has no application to a proceeding concerning the estate of deceased persons and infants, for those matters are within the constitutional jurisdiction of the probate court and can not be said to be within the exercise of any special jurisdiction.' The rule sustained by all the authorities is stated in one of the encyclopedias as follow's: “When a court of general jurisdiction proceeds in the exercise of special powers, wholly derived from statute, and not exercised according to the course of the common law, or not pertaining to its general jurisdiction, its jurisdiction must appear in the record, and can not be presumed in .a collateral proceeding.” 23 Cyc. p. 1081.
While that is undoubtedly the correct rule, its application does not sustain the majority opinion for the reason that the probate court in ordering the sale of an infant’s estate, whether it be the homestead or other property, acts within its general jurisdiction.
The probate court, by the issuance of letters of administration or of guardianship, acquires general jurisdiction over all the estate of the decedent or the infant, and all proceedings thereafter are in the nature of proceedings in rem. The rule as to presumptions concerning the regularity of probate courts sometimes works hardships in individual cases, but it has been often said •by this court that it is better that there should be individual hardships than that the integrity of judgments of superior courts should be destroyed.
Now, as to the effect of the sale of the infant’s interest in the homestead, if it be treated as a valid sale anjl as having passed to the purchaser all the interest of the infant: It has been decided by this court in the cases cited in the opinion of the majority that an infant can not himself waive the homestead right. That is undoubtedly true, but if the probate court has the power to sell his interest it operates as an abandonment of the privilege of claiming the homestead. It is, after all, a mere privilege which does not pass to the purchaser. It was held in Garibaldi v. Jones, 48 Ark. 230, that an attempt by a widow to sell the hopiestead operated as an abandonment of the privilege of occupancy. The same rule would apply to the sale by” an infant acting through his guardian under orders of the probate 'court. The right to occupy as a homestead being a privilege which is personal to- the infant, it does not pass to the purchaser, and it would be anomalous to say that under those circumstances the title which had passed to the purchaser was protected by the infant’s privilege which had been abandoned' by the sale. It may be an improvident act of the probate court in ordering the sale of the infant’s homestead, but that does not appear' upon the record in this case for we do not know whether the property brought an adequate price or not. That is not shown in the present proceeding.
The effect of this decision, however, is to declare invalid the sale and to render void the title of the purchaser, who doubtless purchased on the faith of the decision of this court in Merrill v. Harris, supra, that the probate court had complete jurisdiction over the subject-matter and that a sale of the infant’s homestead was valid. Whatever differences of opinion may be entertained as to the correctness of the decision in Merrill v. Harris, it certa.inlv constituted a rule of property and ought not to be disturbed.